 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Allstate Insurance v. Salem1/10/2005
ts the right of a claimant to pursue the other. However, parties are permitted to alter their statutory rights by contractual agreements.
The terms of the Allstate insurance policy may affect the rights of Abraham to recover damages arising from this accident. Allstate argues that the terms of its agreement alter Abraham's right to bring an action for his own personal injuries as well as the wrongful death of his mother. Allstate claims that the policy language limits Abraham's recovery to "one share of the policies for his personal injury and wrongful death claims, arising out of the December 5, 2001 accident, notwithstanding how many claims he may have." Allstate's interpretation of its policy allows Abraham only one claim, forcing him to choose which action he wishes to pursue.
But Allstate's interpretation of its "per person" injury limit is not appropriate because a personal injury claimant may also claim wrongful death for the fatal injuries caused to another in the same accident. Abraham has a personal injury claim for the injuries he sustained in the accident. An independent claim exists for his mother's wrongful death, which may be pursued by her heirs. Abraham's involvement and injury in the accident shall have no effect on his ability to claim a portion of the recovery allotted for the wrongful death of his mother. The insurance policy provides a $100,000 per person limit. The actual policy reads that " he limit stated for each person for bodily injury is our total limit of liability for all damages because of bodily injury sustained by one person, including all damages sustained by anyone else as a result of that bodily injury."
In plain language, the Court reads this to mean that Abraham has a claim for the bodily injury he sustained ("for all damages of bodily injury sustained by one person"). He has a separate claim arising out of the injuries causing his mother's death ("including all damages sustained by anyone else [Abraham] as a result of that bodily injury [injury to Nancy Suarez, Abraham's mother]." Injuries to two persons yield two separate claims. Abraham may rightfully seek damages arising from his mother's injuries and death.
As plaintiff's counsel aptly pointed out, should the Court adopt the Allstate reading of its policy, Abraham would be forced to choose between his personal injury claims and the wrongful death action. Abraham could then pursue his own claim and recover up to $100,000. But his deceased mother's spouse, parent, siblings or other children could pursue the wrongful death action without him. This would result in the remaining relatives splitting a larger award based solely on Abraham's exclusion from the recovery. Nothing in the insurance policy or related case law supports this reading to preclude Abraham from claiming a derivative portion of his mother's wrongful death action while pursuing damages for his own injuries. According to my interpretation of the policy, a child who simultaneously lost his mother and incurred his own personal injuries in a single automobile accident shall not be denied his rightful opportunity to recover for the both of them. Should the Court award damages for physical injuries and the wrongful death of Nancy Suarez, Abraham will be permitted to recover for himself and derivatively for his mother.
Allstate's Motion for Partial Summary Judgment is therefore denied.
IT IS SO ORDERED.
Very truly yours,
Page 1 2 Delaware Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|